Making Sense of North American and South African Differences in the Practice of Restorative Justice

Cultural realities in North America and South Africa influence the way practice is undertaken. In this article, Susan Sharpe and George Lai Thom explore how those differences impact the practice of victim offender mediation in those two contexts.

Introduction

Best practice is a widely shared value in restorative justice.
Practitioners seek to achieve it, their agencies promise to provide it,
and everyone else expects it. But what “best practice” actually means
in terms of facilitator behavior has not been established or at least
not broadly enough or persuasively enough to be endorsed as “best
practice in restorative justice.”

Various combinations of judgments and skills are proposed as standards
for facilitators to meet and for evaluators to look for, but there is
not yet enough evidence to settle competing claims about what is
essential for “best practice.” Some broad agreement exists, however, at
another level, where basic perspectives are taken as givens. One
seemingly persuasive tenet is that the restorative justice process,
irrespective of the form it takes, must exemplify the core principles
and values that define the field. Another is that the restorative
justice process must be culturally appropriate for the people
involved.

These convictions are usually expressed independently, in response to
different issues. It is easy to accept each on its own merits, seeing
them as separate criteria to be met in separate ways. At least, it was
easy for one of us (Susan) to do that—considering each of them a
fundamental requirement of “best practice” without ever considering
them both at once. That changed when the two of us began talking about
victim-offender mediation (VOM) in cases of violent or otherwise
traumatic crime. (Authors’ note: In this article, the terms VOM,
mediator, and mediation refer exclusively to such serious cases.)

It happened that Susan began taking specialized training for VOM, in
North America, at about the time George began doing the same thing in
South Africa. What she heard in her training courses was consistent
with what both of us had learned through professional literature,
conference presentations, and discussions with experienced mediators --
a combination of resources that had given both of us the same
understanding of how VOM was generally done in Canada and the US.

As we understood it, VOM in cases of very serious crime required
cautious approach, careful screening, in-depth preparation, and
heightened attention throughout; cases often unfolded slowly as
mediators helped participants ready themselves for an emotionally
difficult experience; most mediators framed their role as aiding
participants on a healing journey, and some took an explicitly
therapeutic approach. (This understanding might not have been correct,
but it is what each of us had gathered from a variety of sources before
we first talked about it.)

Susan embraced this approach and planned to emulate it in her work.
George understood and respected it, but decided he could not take it to
South Africa. For one thing, communication and transportation hurdles
would make extra preparation meetings a luxury. In addition, the South
Africans he worked with were generally more private than tends to be
the norm in North America, and he believed a strong focus on emotional
preparation would feel intrusive to them.

At the same time, George was adamant that VOM must be done properly and
he insisted on resources he needed for doing it well. This paradox --
why his work could not be done the same way if he wanted it to have the
same level of quality -- made us wonder about core principles and
values in relation to cultural appropriateness. If “best practice”
requires both, how do they fit together? Is it a simple translation, a
change in one direction? Or does culture also have an influence on the
core principles? Either way, how does the mediator determine which
changes to make to achieve cultural appropriateness?

We had a chance to start looking more closely at that question in 2006,
when Susan was invited to South Africa for other work. She stayed on to
learn more about how George’s practice differed from VOM done in North
America and spoke with several other South African mediators who had
done a few serious cases each. This article briefly summarizes what we
observed and suggests potential implications.

Two caveats are important: this discussion is based on a very
preliminary exploration, not on an empirical comparison of matched
variables. Susan did interview participants from many of George’s VOM
cases and she talked with other mediators who had handled a few cases
each, but only to get an overview of VOM in SA and to help her better
understand what George was doing differently and why.

Second, we have framed this discussion as a comparison of VOM practice
in SA and North America, knowing that this frame obscures much of the
reality. It glosses over differences in VOM practice within each of the
three countries, and between Canada and the US, and ignores how much
they have in common. This is the equivalent of an aerial view, suitable
because our aim is not to document actual practice on the ground. Our
purpose is to point out a pattern that is more visible from that
distance, calling attention to the need for proper research on the
ground.
Differences in North American and South African Perspectives

As we scanned the major features of VOM in North America and South
Africa, several differences stood out in relation to policy,
participation decisions, and preparation.

Corrections Policies
Most VOM takes place while the offender is incarcerated and therefore
requires assistance from the institution where the person is held.
About one-third of states in the United States allow VOM for
incarcerated people, but only when requested by that person’s victim;
this protects victims’ right to privacy from further intrusion by the
offender. Canadian policy allows for VOM cases originating with
offenders, but only if the request is forwarded by institution staff
who see it as an appropriate option for the offender and screened
through a national corrections office. In those cases, the invitation
is made through someone already known and trusted, such as a victim
advocate. In contrast, all of the South African cases we looked at were
offender-initiated, stemming from prison programs where people learned
about restorative justice and then wanted an opportunity to make amends
for their crimes (typically aggravated assault, rape, or murder). By
and large, those overtures were generally welcomed, even by victims who
opted not to participate.

A second policy governing VOM in North America is that offenders may
not receive any benefit in exchange for participating in VOM.
Consistent with the principle of voluntariness, offenders, like
everyone else, are expected to participate for their own reasons and
take their own benefit from it. North Americans like this policy
because it reduces the risk of offender manipulation and frees victims
from any concern that their choices might help or hinder the offender.
But the policy was perplexing to people we mentioned it to in South
Africa, where participation in victim-offender dialogue is broadly seen
as an appropriate basis for early release. In our conversations about
this difference, people asked, “Why would there be a policy against
recognizing someone’s effort to make amends?” More to the point, “When
someone has had a change of heart, why would you keep them in
prison?”

Participation Decisions
Voluntary participation is as strong a VOM value in South Africa as in
North America, but the value is expressed differently. In both, it is
common for an entire family to join the initial meeting to learn about
VOM. They may discuss risks and benefits, but eventually each family
member decides, “Yes, I’ll do it” or “I’m not going to.”

In South Africa, there is often just one decision for the family --
“Yes, we’ll do this” or “We’re not interested” -- a decision sometimes
reached by the group and sometimes made by the head of the family. This
difference plays out in the number of people who take part in
facilitated dialogues. In North America, these meetings often involve
just one or two victims and the offender. In South Africa, they
typically bring half a dozen or more people to talk with the offender
as a family unit.

Purpose
In North America, victims in a VOM often want to get answers to their
questions or convey the full extent of the harm; offenders often see it
as a way to help the victim, and perhaps also for their own
psychological or spiritual benefit. Mediators typically describe VOM as
part of a healing journey.

Clearly South African victims and offenders have those same needs and
motivations, but their primary reason for participating is relational,
not personal. They saw VOM as a vehicle for reconciliation, and
reconciling was the right thing to do. In case after case we heard
people stressing the value of mediation because “It is so important to
make peace.”

Readiness
In Canada and the U.S., professional literature and training programs
stress that “best practice” involves helping both parties prepare
themselves for meeting each other, both to reduce their emotional risk
and to help them get what they want from the encounter. Typically, this
means at least one more session with each party, often several, to help
them identify their goals and fears and to plan strategies for dealing
with a range of possible scenarios. Most of the South African cases we
looked at had no additional meeting between the decision to participate
and the joint session between victims and offenders.

Reasons for Differences

Why do these differences appear? Victims and offenders have the same
range of needs, motivations, and preferences in both cultures. Yet
practice and policy address only part of that range. In both cultures,
for example, there are victims who need to feel safely out of
offenders’ reach and other victims who need to hear a self-generated
apology from the offender. In both cultures, there are offenders
motivated by remorse and other offenders motivated by self interest.
Why do VOM practice and related policies favor meeting some needs over
others, or supporting some motivations at the expense of others? And
why are different priorities chosen in different places?

Looking for reasons why South African and North American policy and
practice have evolved differently focused our attention on other
differences between the two cultures -- primarily differences as to
which values are primary. For example, offender-initiated VOM is
probably permitted by authorities and welcomed by victims in South
Africa because of the strong cultural expectation that someone who has
done wrong must come and apologize for it. North Americans have the
same belief, in principle, but not the same expectation that it will
govern behavior. A rape case we looked at was reported to the police
only because the offender’s parents failed to apologize to the victim’s
parents for what their son had done. Another victim -- a man who was
permanently disabled in a shooting -- refused mediation because the
offender had never phoned or written to apologize.

South Africans’ willingness to reward VOM participation with early
release from prison is consistent with the strength of another cultural
value -- forgiveness. Forgiveness is also a strong value for many North
Americans, and many victims would be glad to see their offenders
released. But many others reject the notion of forgiving their
offenders, and probably the majority struggle with conflicting feelings
and expectations (their own or others’) about whether or not to
forgive. Certainly South Africans sometimes refuse to forgive, and
people there may struggle with it too. But the rightness of forgiveness
is imbued in the South African culture and forms a powerful social
norm. The strength of this value does not mitigate the strength of
participants’ pain, remorse, or expectations of accountability, but it
does provide a point of reference that surfaces easily and often in
people’s comments about why they see VOM as so valuable and why they
choose to participate in it.

South Africa has a communitarian culture, where people live their lives
within a framework shaped by extended family and community. Making
joint decisions about participating in VOM and participating as a
family unit are consistent with that framework. People live independent
lives, but that independence still operates within the orbit of
surrounding relationships. Canada and (especially) the U.S. have
individualistic cultures, where people are more likely to structure
their lives around personal goals. Many people seek and have strong
bonds with family and community, but such bonds tend to be considered a
luxury rather than the default stereotype, and assumed to be less
important than financial or professional goals in influencing major
life decisions. Thus, North American practitioners tend to be startled
on hearing that families often make joint decisions about whether to
participate in VOM (and disapproving of allowing such decisions to be
made by the head of the family and imposed on other family members).
Individual autonomy is highly prized enough that specifying each
person’s voluntary participation would be redundant.

The difference we saw in purpose is also consistent with other aspects
of the two cultures. Both Canada and the U.S. are western societies,
favoring individual goals and encouraging self-sufficiency and personal
achievement. In that context, and particularly given that serious crime
usually has a serious impact on the victim’s life (as well as the
offender’s), it makes sense that personal healing would be VOM’s
primary purpose in North America. It equally makes sense that
reconciliation would be a primary purpose in South Africa’s
communitarian society, where people prize their connections to family
and community, and where people live in such close quarters and have to
rely on each other to such an extent that maintaining good relations
has to be a priority.

As we look at these differences, what stand out are the assumptions
shaping the choice of priorities. Mediators and policy makers in
South Africa and North America are making different assumptions—based
on good evidence— about what participants are likely to experience
(from each other or from the VOM process) and about how they will
interpret that experience. Will they find something intrusive or
compassionate, respectful or disrespectful, or supportive or
controlling? Those assumptions yield different judgments about how to
manage risk and help participants achieve their goals and, therefore,
different policies and different process decisions.
Conclusion

We see these differences in VOM practice as markers of differing
assumptions (and thus predictions) about what participants might
experience and what significance it might have for them, which in turn
reflect primary values that help to define the two cultures. If that is
the case, what might it say about best practice?

We see three implications. First, it would indicate that cultural
appropriateness is not simply an add-on, i.e., not a matter of
translating (parts of) a process into a different format or bringing
into it something derived from local tradition. Nor is it primarily an
admonition, a reminder that mediation should be made culturally
appropriate when introduced in a different culture. Instead it seems
more of an observation that best practice is appropriate to the culture
where it serves. In other words, culture shapes practice everywhere,
not only when it is imported from somewhere else. This means that
standards for best practice must be culturally contextual.

Second, the influence of culture needs to be recognized and accounted
for in efforts to define best practice—not only for the sake of sound
theory and stronger research, but also to guide practice choices. If
standards for best practice depend on cultural context, then mediators
and their evaluators need more guidance in how to assess the expression
of core restorative justice principles and values, in order to know
when and how to adapt some form of the process and when to preserve
some form, even though it is unfamiliar, for the sake of fidelity to
that core.

Third, this is a reminder that cultures differ within North America and
South Africa as well as between them. George works primarily in crowded
townships and isolated villages where people are marginalized, and
where large numbers of people are poor, illiterate, and unaccustomed to
professional intervention that probes their emotional lives; he
practices differently from other South African mediators because he
grew up in the same kind of similar community in South Africa and
understands how people living there see the world, including VOM
opportunities that come knocking on the door. He knows that VOM for
urban South Africans, who are increasingly westernized, might resemble
North American VOM more closely than it would his current practice.

Canada and the US also contain communitarian and other kinds of
communities with different priorities, where VOM needs to be practiced
differently from the way it is in mainstream communities.

Finally, this observation of the link between “best practice” and
culture suggests reasons for VOM practitioners -- and presumably others
-- to be more mindful of how culture has shaped their own notions of
best practice. Awareness that “bad” practice in one place might be
“good” practice in another might help facilitators anchor their
practice in attentiveness to participants needs, allowing their
convictions about best practice to be more porous.